Court of Appeal for Ontario

Date: April 12, 2017

Docket: C59712 and C60647

Justices: Sharpe, Rouleau and Benotto JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Elizabeth Gayle Appellant

and

Fedrick Gayle Appellant

Counsel

• Delmar Doucette and Angela Ruffo, for the appellant Elizabeth Gayle
• Paul Alexander, for the appellant Fedrick Gayle
• David Finley and Lorna Bolton, for the respondent

Hearing and Appeal

Heard: February 1-2, 2017

On appeal from: The conviction entered on June 26, 2013 by Justice K. van Rensburg of the Superior Court of Justice, sitting with a jury.

Decision

By the Court:

[1] Tiffany Gayle was 15 years old when she was brutally beaten to death in her home. A jury found her father Fedrick and her step-mother Elizabeth guilty of first degree murder. Both appeal on the basis that the trial judge erred with respect to certain rulings and in her instructions to the jury.

Facts

[2] In January 2009, Tiffany Gayle, then 14, was sent from Jamaica to Brampton, Ontario by her mother. She arrived with her half-siblings, her older sister Samantha and her younger brother Fedrick Jr. The three children shared the same father but had different mothers. They were all going to live with Fedrick and Elizabeth.

[3] Several witnesses testified to Tiffany's unhappiness in Canada. After only 5 weeks, Samantha had been sent back to Jamaica. Tiffany was worried about being sent back as well. She told her teacher and a friend that there were arguments at home, mainly with her step-mother. In the days leading up to her death, she was sad and depressed. She missed a dance exam because she was afraid to ask her father to sign the permission slip.

[4] On the morning of June 11, 2010, Tiffany told a friend that she had been in an argument with her step-mother that lasted all night. By the next morning she was dead in the bathtub of the downstairs bathroom.

[5] Elizabeth gave three statements to the police, on June 12, June 15 and June 16, 2010. Only the first and the third were adduced in evidence at trial. On June 12, she told the police that she did not know who committed the murder. She said that she had gone to bed late on the night of June 11, fell asleep, woke up the next morning and found Tiffany's body.

[6] On June 16, Elizabeth told police that Fedrick had killed Tiffany. She outlined what had occurred on the night of June 11. She said that she asked Tiffany to come to the garage to give her a "lecture" about her misbehavior involving an alleged lie. Elizabeth chose the garage so that Fedrick would not hear the conversation. While she was lecturing Tiffany, Fedrick came in. When he heard of Tiffany's misbehavior, he "snapped," picked up a baseball bat and hit Tiffany with it. He then ordered Elizabeth out of the garage. She complied. She saw Tiffany and Fedrick go into the basement. Elizabeth came downstairs and told Fedrick to stop. She saw Fedrick striking Tiffany with the bat. Fedrick then ordered Elizabeth to go upstairs. Elizabeth went to bed and fell asleep. The next morning, she found Tiffany in the bathtub and was unaware if she was dead or alive. She called her daughter Kashra who eventually called 911. Emergency services arrived shortly thereafter.

[7] In March 2011, nine months after this statement to the police, in exchange for her release on her own recognizance, Elizabeth told the police that she saw Fedrick leave the house on the morning of June 12 with a bat. She said he might have taken it to a rental property that they owned. She described the bat as blue with a white handle. The police found a blue bat with a black handle in a metal shed on the property she had referred to. The bat was entered as an exhibit at trial.

[8] Fedrick Gayle made two utterances introduced through Crown witnesses at trial: (i) he told Kashra that he tried to wake Tiffany but she wouldn't get up; and (ii) he told his daughter Samantha that he was not in the house that night.

[9] Elizabeth and Fedrick each took the position at trial that the other had done the killing. Neither testified.

[10] The forensic evidence provided information as to the events of June 11-12. The pathologist found that Tiffany had suffered multiple blunt force injuries all over her body, to her head, torso, arms, and legs. There was evidence consistent with two weapons having been used, a baseball bat and a barbeque tool. The pathologist could not say with certainty, however, what weapons had caused the injuries, and he could not exclude the possibility that there had been only one.

[11] The blood-stain pattern analysis showed that Tiffany had been struck in the garage, entered the house through the garage door to the basement, and then continued down the hallway to the foyer outside the basement bathroom. There were multiple blood spatter stains in the foyer indicating that she had been repeatedly struck there. They showed that she had been moving while being hit. The beating had continued in the bathtub where she died.

[12] The police found red paint transfer marks on the walls of the foyer and grey scuff marks on the ceiling of the basement and the edge of the bathtub. A broken barbecue tool with a red handle was found in the kitchen area. There were bloody footprints in the basement. Tiffany's blood was found on Fedrick's jeans and on Elizabeth's nightgown and on other clothing belonging to both.

[13] There were obvious signs of an attempted clean-up throughout the foyer of the basement bathroom and bathroom. There was also evidence of an attempt to wash Tiffany's body. Elizabeth's and Fedrick's footprints were found in areas containing Tiffany's blood.

Issues

[14] Elizabeth appeals on the basis that the trial judge misdirected the jury by allowing the jury to consider her after-the-fact conduct to determine her level of involvement in the crime – as a co-perpetrator or an aider. She further argues that the trial judge erred in allowing the jury to consider her after-the-fact conduct when assessing the causation element of first degree murder.

[15] Fedrick appeals on the basis that the jury should have been given limiting instructions with respect to prior discreditable conduct arising from Samantha's evidence. He also submits that the baseball bat should not have been admitted in evidence or referred to as after-the-fact conduct. He submits that the jury was not properly instructed with respect to Elizabeth's statement as to where the bat might be found. Further, he submits that there should have been a W. (D.) instruction with respect to his exculpatory statements and that there should have been a severance of the trial.

Analysis

Fedrick Gayle's Appeal

Discreditable Conduct Evidence

[16] Elizabeth's counsel elicited the following evidence when cross-examining Fedrick's daughter, Samantha Gayle:

• Fedrick beat Samantha with a belt when she was a young child in Jamaica on a number of occasions leaving stinging welts on her arms;
• before she left Jamaica with her father in 2009 she made it clear that she would not tolerate any beatings in Canada and that she would call 911 if threatened;
• on one occasion after their arrival in Canada, her father became angry and it appeared that he was about to hit her. She reminded him of her threat to call the police and he desisted.

[17] Fedrick argues that this was evidence of discreditable conduct and propensity that should not have been admitted. As the evidence was admitted, the trial judge erred by failing to give a limiting instruction to the effect that while the evidence could be used to raise a reasonable doubt by Elizabeth, it could not be used to prove Fedrick's guilt.

[18] In our view, the trial judge did not err in admitting this evidence. No objection was made to admissibility at trial. While this evidence may not have been admissible at the behest of the Crown, provided its prejudicial effect does not substantially outweigh its probative value, it was admissible at the behest of a co-accused at a joint trial to allow the co-accused to make full answer and defence.

[19] We do not agree that the prejudicial effect of this evidence substantially outweighed its probative value. The evidence was remote in time and the conduct was materially different from the savage beating at issue at the trial. Fedrick's counsel went a long way to neutralize the effect of Samantha's evidence in cross-examination. She admitted that after the family came to Canada, when disciplining the children, Fedrick just talked to the children and did not hit them.

[20] There was also evidence that Elizabeth had used corporal punishment to discipline the children. In his closing address to the jury, Elizabeth's counsel submitted that it would be wrong to conclude that because someone had used a belt to discipline a child, that person had a propensity to use a bat to kill someone. He specifically linked that situation to Fedrick as well as to Elizabeth. At the end of the day, Elizabeth's counsel placed no weight on this evidence.

[21] Nor do we accept that the trial judge erred by failing to give a limiting instruction.

[22] The charge was thoroughly vetted by counsel and no limiting instruction of the kind sought on appeal was requested at trial. In our view, there may well have been strategic reasons for not seeking a limiting instruction that could serve only to remind the jury of the evidence or cause them to place undue weight upon it.

[23] Taking all these circumstances into account, we conclude that there was no realistic risk that the jury would have inferred that Fedrick was capable of bludgeoning his daughter to death with a baseball bat because years earlier, he had used a belt to discipline another daughter. The trial judge's failure to give a limiting instruction on discreditable conduct did not amount to an error in the circumstances of this case and we would not give effect to this ground of appeal.

Admissibility of the Bat

[24] Fedrick submits that the trial judge erred in admitting the baseball bat into evidence and instructing the jury that they could find that he had hidden the bat and consider that as after-the-fact conduct consistent with his guilt. Fedrick advances three alleged errors:

• the trial judge erred in failing to assess the strength of the inferences for which the bat was tendered when weighing the probative value against prejudicial effect;
• the trial judge misapprehended the evidence regarding the scuff marks at the scene of the crime; and
• the trial judge improperly relied on Elizabeth's statement about where the bat might be found, which was not admissible for its truth against Fedrick.

[25] We do not accept these submissions. In her ruling admitting the bat, the trial judge did advert to certain weaknesses in the evidence linking the bat to the crime, namely the absence of DNA and the fact that any number of bats could have the same chemical composition and could have been used to commit the crime. She ruled, however, that those matters went to weight, not admissibility and that the bat should be admitted in evidence, leaving it to the jury to assess its weight. In our view, she was entitled to so rule.

[26] While the trial judge did err in relation to the colour of the scuff marks, describing them as blue when in fact they were grey, that error was not material to her decision. The fact linking the bat to the crime was not the colour of the scuff marks but that their chemical composition corresponded to that of the bat.

[27] Quite apart from Elizabeth's statement, there was sufficient evidence linking the bat to the crime to warrant its admission. The forensic evidence regarding the nature of the injuries and the scuff marks supported an inference that an aluminum bat had been used to strike the victim. There was evidence that there was an aluminum bat at the Gayle residence before the crime, and no bat was found at the scene by the police when conducting their investigation. The bat was found at a property formerly owned by Fedrick and Elizabeth, in a locked shed to which Fedrick controlled access at the time when the crime took place. The new owner of the property testified that the bat was in this shed when he moved in. Fedrick had the opportunity to remove the bat from his home immediately after the crime and to place it in the locked shed. As Elizabeth did not drive, she lacked a similar opportunity.

[28] We conclude that the trial judge did not err in admitting the bat into evidence and instructing the jury that if they found that Fedrick had hidden the bat, they could consider that as after-the-fact conduct evidence indicating consciousness of guilt on the part of Fedrick.

Elizabeth's Statement to the Police About the Location of the Bat

[29] Fedrick submits that the jury was not properly instructed that Elizabeth's statement to the police, to the effect that she believed that the bat might be found in the shed at their rental property, could not be used against him.

[30] In her original statement to police, Elizabeth said that Fedrick had stepped out of the house with the bat and that she guessed he had taken it to the other property based on how long he was gone. In pre-trial motions, counsel agreed to introduce an edited version of Elizabeth's statement by way of agreed statement of facts, redacting anything linking Fedrick to the bat. When discussing whether the bat itself could be admitted, both Crown counsel and Fedrick's counsel took the position that if the bat were admitted, the jury would have to be instructed that Elizabeth's statement was not admissible against Fedrick.

[31] The agreed statement was introduced at trial as narrative to explain the process by which the police had discovered the bat. At this time there was no request for a specific limiting instruction, nor was such a request made at the pre-charge conference or after the charge had been delivered.

[32] The trial judge instructed the jury at several points mid-trial and repeatedly in her final charge that Elizabeth's out-of-court statements were not admissible against Fedrick. Those instructions were linked to references to the various out-of-court statements she made but none was specifically linked to the agreed statement of facts regarding the bat.

[33] Fedrick submits that as the trial judge also instructed the jury to consider all of the evidence, there is a risk that the jury might have considered the agreed statement of facts relating to Elizabeth's statement as being admissible against him.

[34] We do not accept this submission. First, the edited statement was equivocal and only stated that Elizabeth believed that the bat might be found in the shed and contained no reference linking Fedrick to the bat or to Fedrick taking the bat to the other property. Second, no request for a specific limiting instruction was made either before or after the charge. Third, the jury was repeatedly told that they could not use Elizabeth's out-of-court statements as evidence against Fedrick. Fourth, in his closing address, Crown counsel specifically told the jury that what Elizabeth told the police about the whereabouts of the bat was only admissible against her.

[35] Taking all of these circumstances into account, we conclude that there is no realistic risk that the jury could have improperly used Elizabeth's out-of-court statement about the possible location of the bat.

Severance

[36] Fedrick submits that the trial judge erred by failing to grant his application for severance on the ground that the jury would not be able to ignore Elizabeth's out-of-court statements, inadmissible against him, but implicating him in the death of his daughter.

[37] We do not agree with this submission. It is well-established that a trial judge's decision on severance is discretionary and attracts deference on appeal. It is also well-established that there is a strong presumption that co-accused who are alleged to have acted in concert are to be tried together. This is particularly so where, as in this case, the co-accused advance "cut-throat" defences in which they blame each other for the crime alleged. Such cases pose a serious risk of inconsistent verdicts which can be avoided by a joint trial: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 87-88.

[38] This was not a case where a serious imbalance in the evidence required severance. There was significant evidence linking Fedrick to the crime and the jury were properly instructed, both mid-trial and in the final instructions, that they were not to use Elizabeth's statements to the police as evidence against Fedrick.

Lack of a Full W. (D.) Instruction in Relation to Fedrick's Out-of-Court Statements

[39] Fedrick complains the trial judge erred by failing to give the jury a full W. (D.) instruction in relation to two exculpatory statements, one he made to his daughter Samantha and the other to Kashra Charles. In the first, he told Samantha that he was not at home when Tiffany was killed and in the second, he exclaimed "Oh my God, I tried to wake her up. She wouldn't get up."

[40] We see no merit in this submission for the following reasons.

[41] The trial judge did give the jury a modified W. (D.) instruction in relation to these statements. She told the jury that one or both of these statements could help Fedrick in his defence and that they were entitled to consider the statements along with the rest of the evidence to decide whether they had a reasonable doubt as to Fedrick's guilt.

[42] In the pre-charge conference, the trial judge specifically asked Fedrick's trial counsel if he was satisfied with her proposed modified W. (D.) instruction for Fedrick and he stated that he was.

[43] In our view, not only was a full W. (D.) instruction not required; the instruction that was given was unduly favourable to Fedrick. The reason is that his exculpatory out-of-court statements were inadmissible. These were not "mixed" statements containing inculpatory and exculpatory portions tendered by the Crown. They were entirely exculpatory and not admissible for the truth of their contents: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111.

Fedrick's Appeal: Conclusion

[44] For these reasons, Fedrick's appeal is dismissed.

Elizabeth Gayle's Appeal

[45] Elizabeth advances two related grounds of appeal. She argues that the trial judge erred in instructing the jury that they could consider her after-the-fact conduct to determine whether she had acted as a co-perpetrator of the assault on Tiffany (with Fedrick) or as mere aider to Fedrick's assault on Tiffany. Put differently, Elizabeth maintains that the trial judge had to give the jury a limiting instruction to the effect that they must not use her after-the-fact conduct to determine whether she had acted as a co-perpetrator or as an aider. The second ground of appeal is that a similar instruction ought to have been given when discussing the causation element of constructive first degree murder.

[46] At the hearing, Elizabeth abandoned the third ground of appeal. That ground was that the jury was not properly instructed on the use that could be made as inculpatory after-the-fact conduct of her exculpatory second statement to the police.

[47] At trial, the Crown relied on two broad aspects of Elizabeth's after-the-fact conduct: first, that she lied in her statements to the police and, second, that she participated in the extensive clean-up carried out after the homicide.

[48] After-the-fact conduct is a form of circumstantial evidence that is generally admissible to show that, after the alleged offence, the defendant acted in a manner that, based on experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent one.

[49] Its admissibility is subject to the normal rules of admissibility for circumstantial evidence. It must be relevant to the fact in issue and its prejudicial effect must not outweigh its probative value.

[50] Once after-the-fact conduct evidence is admitted, however, the court must be careful to ensure that it is not misused by the trier of fact. As noted in R. v. Angelis, 2013 ONCA 70, 300 O.A.C. 367, at para. 52, after-the-fact conduct may well be probative of an accused's culpability but is usually not probative of the level of that culpability.

[51] In the present case, Elizabeth concedes that her after-the-fact conduct could be understood by the jury to be evidence of consciousness of guilt. It was therefore admissible to assist the jury in determining whether she was involved in the homicide. According to the Crown's theory, Elizabeth's involvement was either as a co-perpetrator in the assault leading to Tiffany's death or as an aider because she did not call 911 or otherwise intervene in Fedrick's assault on Tiffany. What the jury could not do, according to Elizabeth, was to go on to use after-the-fact conduct to decide into which of the two modes of participation in the homicide Elizabeth's conduct fell under.

[52] In Elizabeth's submission, her after-the-fact conduct was probative only of the issue whether she had any involvement in the homicide. It was not probative of her level of involvement in the homicide. In the present case, however, the instructions given by the trial judge and the decision tree used by the jury directed the jury to consider after-the-fact conduct in deciding more than involvement in the homicide. It invited the jury to consider after-the-fact conduct to decide which of the two culpable acts Elizabeth committed. This, Elizabeth argues, ran afoul of this court's decision in Angelis as it allowed the after-the-fact conduct to be used in deciding level of culpability despite it being of no probative value with respect to that issue.

[53] If Elizabeth had acted as a co-perpetrator of the assault that caused Tiffany's death, the jury was told, and the decision tree indicated, that this could lead to a conviction for first degree murder. If she had only aided in the commission of the offence by failing in her duty to call 911, this could only lead to a conviction for second degree murder or manslaughter.

[54] The concern raised by Elizabeth arises because of the trial judge's decision to divide the first question to be asked in a charge of homicide into two parts. The decision tree provided to the jury, a copy of which is appended to these reasons, shows question 1 as: "Did Mrs. Gayle cause the death of Tiffany Gayle by an unlawful act?" It then directed the jury that, if they were to answer no to this question, they were to go on to consider question 1(b), which reads as follows: "Did Mrs. Gayle aid Mr. Gayle in causing Tiffany Gayle's death by means of an unlawful act?"

[55] The decision tree indicated that a positive answer to question 1 would lead to the jury answering question 2. A negative answer to question 1 would lead to the jury answering question 1(b). If question 1(b) were answered in the positive, the jury was then to answer question 2(b). Question 2 and question 2(b) are the same, that is: "Did Mrs. Gayle have the state of mind required for murder?"

[56] Although questions 2 and 2(b) are the same, the decision tree shows that they potentially lead to different final verdicts. Following the branch headed by question 2 leads to a further series of questions to determine whether Elizabeth is to be found guilty of first degree murder. If the branch headed by question 2(b) is taken, it can lead, at most, to a conviction for second degree murder.

[57] As explained by Elizabeth, it follows from this division between questions 1 and 1(b) that the jury's decision as to whether she was a co-perpetrator or simply an aider determines the ultimate jeopardy she faces. If the jury determined that she was a co-perpetrator, she could be convicted for first degree murder. If, however, the jury determined that she was simply an aider she was exposed, at most, to a verdict of guilty of second degree murder.

[58] The jury was told that Elizabeth's after-the-fact conduct could be considered when determining the first element of the offence. Elizabeth submits that, given the division between questions 1 and 1(b), the jury was effectively invited to use the after-the-fact conduct in determining her mode of participation in the offence. This, she maintains, was an error because after-the-fact conduct is probative of culpability but not probative of the level of that culpability. The after-the-fact conduct could only assist the trier of fact in deciding whether Elizabeth committed an unlawful act of culpable homicide. It could not bear the additional inference that she was involved in the offence as a co-perpetrator rather than as an aider.

[59] Elizabeth argues that her after-the-fact conduct was equally consistent with her being involved in the homicide as an aider or co-perpetrator, but the way the questions were set up by the trial judge would have led the jury to misuse the after-the-fact conduct evidence to decide between these alternatives. She submits that there is a real risk that the jury, having misused after-the-fact conduct evidence to conclude that she was a co-perpetrator, would then have relied on this finding in their assessment of whether she had the intent and level of involvement in the homicide required for first degree murder.

[60] We would not give effect to this submission.

[61] We note at the outset that there was no concern raised at trial with the jury instructions or with the decision tree despite the fact that counsel were provided with copies in advance and had ample opportunity to raise any objection. It is also common ground that the jury could consider after-the-fact conduct in deciding the first essential element of culpable homicide, that is, whether Elizabeth was a party to the unlawful act that caused Tiffany's death.

[62] There is also no dispute that, with respect to Elizabeth, the first element of an offence of culpable homicide, being a party to an unlawful act causing death, can be made out by finding either that she was a co-perpetrator in the killing or that she was an aider to Fedrick, who was the perpetrator. Whether a juror considered Elizabeth to be a co-perpetrator or an aider did not matter in deciding whether the first element of the offence was met. As long as all of the jurors were satisfied beyond a reasonable doubt that she was either a party as a person who caused Tiffany's death by beating her or was a party to the unlawful act as an aider to Fedrick, they were to move to the next question, whether she had the state of mind required for murder. It did not matter if some jurors believed she was a co-perpetrator and others believed that she was an aider. Both could lead to murder. See R. v. Thatcher, [1987] 1 S.C.R. 652.

[63] When the jury turned to question 2 or 2(b), "Did Mrs. Gayle have the state of mind required for murder?" it was made clear to them that in answering this question they could not consider the after-the-fact conduct. The after-the-fact conduct evidence could be used only in considering the first element of the offence, whether Elizabeth had caused Tiffany's death unlawfully, and not for any of the subsequent elements. Again, there is no dispute that this instruction was correct.

[64] In our view, there is no realistic possibility that Elizabeth was prejudiced by the fact that the jury could use the after-the-fact conduct in choosing between the two modes of participation in the offence. The jury clearly could use it to decide the first element of the offence, that is, causing Tiffany's death either as a perpetrator or as an aider. Beyond using after-the-fact conduct in answering question 1 and question 1(b), the jury was instructed that evidence of after-the-fact conduct was to have no role in their deliberations. That is, the after-the-fact conduct was to play no role in the jury's consideration of the subsequent questions that had to be answered in the affirmative if Elizabeth was found guilty of first degree murder. Those questions could not, as we will explain, be answered in the affirmative unless the jury was satisfied, without reference to the after-the-fact conduct, that Elizabeth actively participated in the killing.

[65] The trial judge gave clear instructions that, to be guilty of constructive first degree murder, Elizabeth had to have done something that was "an essential, substantial and integral part of the killing of Tiffany". This is set out as question 3. Even assuming that the jury should not have, but did use after-the-fact conduct to decide Elizabeth's mode of participation in the homicide, to reach their verdict of first degree murder the jury had to have found that her actions were an "essential, substantial and integral part of the killing". This determination was made by the jury without reference to Elizabeth's after-the-fact conduct. Juries are presumed to follow the trial judge's instructions. As a result, even if consideration of after-the-fact conduct played a role in the jury's answer to question 1, the jury was required to reconsider Elizabeth's role when they reached question 3 and the trial judge's directions were clear that, in answering that question, they could not consider after-the-fact conduct. Having answered question 3 in the affirmative, it is apparent, therefore, that the jury excluded the possibility that Elizabeth's role was simply her failure to call 911. They had to revisit any prior determination they may have made in answer to question 1 and, without reference to any after-the-fact conduct, assess with more precision the role that Elizabeth played in the homicide.

[66] Having answered question 3 in the affirmative, there was a further safeguard. The jury had to go on and answer question 4. Was Elizabeth's murder of Tiffany committed "while committing the offence of unlawful confinement"? The trial judge clearly directed that in answering this question, the jury could not use after-the-fact conduct. There can be no doubt that if the jury concluded, as they must have, that Elizabeth unlawfully confined Tiffany in the course of the murder, they determined quite independently from their answer to question 1 that Elizabeth was a co-perpetrator, not simply an aider to Fedrick's assault.

[67] As for the submission that an additional instruction was required regarding the use of after-the-fact conduct when considering the causation element of constructive first degree murder, we view the instructions given as sufficient. The jury was well aware that after-the-fact conduct was not to be considered at this point in their deliberations and no additional instruction was required.

[68] As a result, we do not give effect to these grounds of appeal.

Disposition

[69] For the reasons given, both appeals are dismissed.

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.

Released: April 12, 2017